Following a national trend, Governor Pat Quinn recently signed legislation amending and expanding the protections under the Illinois Human Rights Act (“IHRA”) for pregnant applicants and employees, requiring reasonable accommodation of pregnancy, not just pregnancy disability. The amendment, which takes effect January 1, 2015, applies to all employers with at least one employee.
Examples of reasonable accommodations contemplated by the amendment include: breaks for restroom use, drinking, or periodic rest; use of private non-bathroom space for expressing breast milk; seating; assistance with manual labor; light duty; a temporary transfer to a less strenuous or hazardous position; providing an accessible worksite; acquiring or modifying equipment; job restructuring; a modified work schedule; appropriate adjustment or modification of examinations, training materials, or policies; reassignment to a vacant position; and time off/leave.
Notably, employers may not require pregnant employees to take leave if another reasonable accommodation is available. Nor can they refuse to hire an applicant based on the need for an accommodation.
The process for requesting and evaluating a request for reasonable accommodation is similar to the process required for requests for accommodation of disability. For example, employers may request documentation to support the request for accommodation, but may not request more information than is needed to than to ascertain the legitimacy of the request and the period of time the accommodation is needed. As a practical matter, however, most employers likely will not insist on documentation for simple and common requests like breaks for restroom use and drinking, assistance with heavy lifting or restrictions on travel in the third trimester. Requests that could impose greater burdens on operations and other employees, like requests for light duty or work from home, however may require an interactive process and documentation.
As with disability accommodation, employers do not have to provide accommodations that would be an undue hardship, and the factors for assessing undue hardship are largely the same as for assessing undue hardship with respect to requests for accommodation of disability. For example, an employer doesn’t have “to create additional employment that the employer would not otherwise have created,” discharge other employees to accommodate the pregnant employee, or promote any employee who is not qualified to perform the job, unless the employer does so or would do so for other classes of employees who need accommodation. The factors
The Illinois Department of Human Rights is preparing a mandatory notice that employers will be required to post in a conspicuous place and include the notice in any employee handbook.
For more on the national trend to expand protections for pregnant applicants and employees, please review our client alerts that address the recent laws in New Jersey, New York City, and Philadelphia.